Open PA Schools v. Dept. of Ed. of the Com. of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Open PA Schools, Jamie Walker, :

Tara Adams, James Holt, Felix P. :

Mummolo, Stacey McShane, Jaret :

Matthew Gale, Patrice Silver, Joe :

Dettore, Sr., Chris Brill, and Beth :

Rosica, :

Petitioners :

:

v. :

:

Department of Education of the :

Commonwealth of Pennsylvania :

and Noe Ortega, Secretary of :

Education, in his official capacity, : No. 504 M.D. 2020

Respondents : Argued: February 9, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORANLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: May 12, 2022

This matter concerns an Amended Petition for Review (Amended

Petition) brought pursuant to the Declaratory Judgments Act1 by Petitioners, who are

Open PA Schools, “an unincorporated association consisting of over one hundred

1

42 Pa.C.S. §§ 7531-7541.

parents of children attending public schools throughout the Commonwealth,” and 10

individual parents.2 Amended Petition at 4-5. Respondents are the Department of

Education of the Commonwealth of Pennsylvania and its Secretary, Noe Ortega, in

his official capacity (together, the Department). Id. at 6. Petitioners oppose the

Department’s policy (Policy) providing guidance and procedures to school districts

that began the 2020-21 school year on a largely or entirely remote learning basis in

light of the COVID-19 pandemic. Id. at 9. Petitioners assert that the Policy violates

Section 1501 of the Public School Code of 19493 (School Code), which requires that

all public kindergarten, elementary, and secondary schools “shall be kept open each

school year for at least one hundred eighty (180) days of instruction for pupils.” Id.

at 6-9 & 13 (citing 24 P.S. § 15-1501).

Currently before this Court for disposition are various preliminary

objections filed by the Department. Upon review, we sustain the Department’s

preliminary objection challenging Petitioners’ standing and dismiss the Amended

Petition with prejudice. We do not reach or address the merits of Petitioners’

allegations that the Department’s Policy violates the School Code and is the

proximate cause of permanent educational and psychological damage to every child

in the Commonwealth. See Amended Petition at 15.

I. Factual and Procedural Background

On March 27, 2020, at the onset of the COVID-19 pandemic, the

General Assembly enacted Section 1501.8(b)(1) of the School Code, effective

2

The individual parents are Jamie Walker, Tara Adams, James Holt, Felix P. Mummolo,

Stacey McShane, Jaret Matthew Gale, Patrice Silver, Joe Dettore, Sr., Chris Brill, and Beth Rosica.

3

Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101–27-2702.

2

immediately, which stated, in pertinent part: “The requirement under [S]ection 1501

requiring all school entities to be kept open each school year for at least one hundred

eighty (180) instructional days is waived immediately.” 24 P.S. § 15-1501.8(b)(1).4

Section 1501.8, which expressly applied only to the 2019-20 school year, also

authorized the Department to close school buildings and “[i]ncrease the number of

flexible instructional days that school entities may institute under [Section 1506 of

the School Code, 24 P.S. § 15-1506,5] to a number of flexible instructional days

4

Section 1501.8 was added by Section 4 of the Act of March 27, 2020, P.L. 62.

5

Section 1506 was added by Section 1 of the Act of July 2, 2019, P.L. 396. It became

effective on September 3, 2019, and includes the following definitions in subsection (h)(2):

“Flexible instructional day” shall mean a day that satisfies all of the

following:

(1) Fulfills one of the minimum required days of instruction under

section 1501.

(2) Prevents a school building from opening due to any of the

following:

(i) A disease epidemic.

(ii) A hazardous weather condition.

(iii) A law enforcement emergency.

(iv) The inoperability of school buses or other equipment

necessary to the public school entity’s operation.

(v) Damage to a school building.

(vi) Another temporary circumstance rendering any portion

of a school building unfit or unsafe for use.

(3) Provides instruction to students.

“Program” shall mean a program that allows for a number of flexible

instructional days not to exceed five (5) days during a school year.

24 P.S. § 15-1506(h)(2).

3

determined by the Secretary of Education during the 2019-20 school year.” 24 P.S.

§ 15-1501.8(a) & (b)(2)(i)-(ii).

The General Assembly did not renew Section 1501.8 for the 2020-21

school year. On June 5, 2020, it added Section 1501.9 to the School Code, which

provided: “Beginning in the 2020-[21] school year, the minimum number of school

days under [S]ection 1501 shall apply notwithstanding any order issued under a

declaration of disaster emergency under 35 Pa.C.S. § 7301(c) (relating to general

authority of Governor).” 24 P.S. § 15-1501.9.6 Thus, the minimum requirement of

180 school days was not waived for the 2020-21 school year and the remaining

permissive provisions of Section 1501.8 were not continued.

During the summer of 2020, the Department issued the Policy, which

is available on its website. See Policy.7 The Department recognized that schools

faced challenges in planning for the start of the 2020-21 school year and cited

Section 520.1 of the School Code (“Temporary emergency provisions”), which

states:

(a) Whenever an emergency shall arise which the board of

school directors of any school district in the performance

of its duties could not anticipate or foresee, and which

emergency shall result in any such school district being

unable to provide for the attendance of all pupils during

the prescribed length of school days, number of days per

week, or usual hours of classes, . . . such board of school

directors, subject to the approval of the [Department],

shall have power to put into operation in such school

6

Section 1501.9 was added by Section 10 of the Act of June 5, 2021, P.L. 223.

7

See https://www.education.pa.gov/Schools/safeschools/emergencyplanning/COVID-

19/SchoolReopeningGuidance/ReopeningPreKto12/Pages/InstructionalHours.aspx (last

visited May 11, 2022). The Department updated this portion of its website for the 2021-22 school

year, but has provided the Court with a paper copy of the version at issue in this litigation.

Department’s Preliminary Objections, Exhibit A.

4

district any one or more of the temporary provisions

hereinafter provided for, but in no event shall such

temporary provisions remain in effect for a period of more

than four years after they are first put into effect.

(b) Subject to the foregoing provisions, any board of

school directors may:

(1) Keep the schools of the district in session such days

and number of days per week as they shall deem necessary

or desirable, but the provisions of this act requiring a

minimum of one hundred eighty (180) session days as a

school year shall not be affected thereby.

(2) Reduce the length of time of daily instruction for

various courses and classes.

24 P.S. § 5-520.1(a), (b).8 In the Policy the Department stated that the COVID-19

pandemic constituted “an emergency as contemplated by [S]ection 520.1” and

authorized school districts across the Commonwealth to offer remote learning in

excess of five days during the 2020-21 school year. See Policy.

Petitioners initiated this litigation when they filed a previous version of

the Amended Petition (Original Petition) on September 8, 2020, against the

Department and seven school districts where Petitioners’ children attended school.

Original Petition at 6. Petitioners asserted that the Policy violated the School Code’s

requirement that school districts provide at least 180 in-person school days in the

2020-21 school year, that the Policy should be declared void, and that any remote

learning days during the 2020-21 school year beyond the 5 permitted by Section

1506 should not be counted towards the 180-day requirement. Original Petition ¶¶

31-32 & Prayer for Relief.

8

Section 520.1 was added by Section 1 of the Act of January 14, 1952, P.L. (1951) 1940.

5

The Department and school districts filed preliminary objections to the

Original Petition asserting lack of standing, failure to exhaust administrative

remedies, lack of subject matter jurisdiction, failure to join necessary and

indispensable parties, and legal insufficiency. After en banc oral argument on

December 9, 2020, this Court issued a memorandum opinion concluding that the

Original Petition, as drafted, failed to establish standing. Open PA Schools v. Dep’t

of Educ. (Pa. Cmwlth., No. 504 M.D. 2020, filed Jan. 14, 2021), 2021 WL 129666

(unreported). We dismissed the Original Petition without prejudice and permitted

Petitioners to file an amended petition within 30 days. Id., slip op. at 15-16, 2021

WL 129666, at *7.

On February 13, 2021, Petitioners filed the present Amended Petition

naming only the Department as Respondent but not the previously named school

districts.9 The Amended Petition renews Petitioners’ assertion that the Policy

violates the School Code and the Pennsylvania Constitution.10 Amended Petition at

15-16. The Department filed new preliminary objections asserting lack of standing,

lack of redressability, improper relief sought, and failure to state a claim, which

Petitioners answered. Briefing and oral argument has concluded, and this matter is

now ripe for disposition.11

9

Petitioners state in their brief without further explanation that the school districts “are no

longer parties to this litigation.” Petitioners’ Br. at 4.

10

Petitioners refer to article III, section 14 of the Pennsylvania Constitution, which imposes

a duty on the legislature to “provide for the maintenance and support of a thorough and efficient

system of public education to serve the needs of the Commonwealth.” Pa. Const. art. III, § 14.

Amended Petition ¶¶ 8-10.

11

In ruling on preliminary objections, this Court must accept as true all well-pleaded facts

and all inferences reasonably deducible therefrom. Dorfman v. Pa. Soc. Servs. Union-Loc. 668 of

Serv. Emps. Int’l Union, 752 A.2d 933, 936 (Pa. Cmwlth. 2000). “However, we need not accept

as true conclusions of law, unwarranted inferences from facts, argumentative allegations or

6

II. Discussion

The Department again challenges Petitioners’ standing to bring this

action, alleging failure to assert sufficient harm caused by the Policy. Preliminary

Objections ¶¶ 12-18. Our law on standing is well settled:

[T]he discrete principles of standing, ripeness, mootness,

the political question doctrine, and the proscription against

issuing advisory opinions are prudential, judicially created

principles designed to winnow out litigants who have no

direct interest in a judicial matter and have not presented

to the court a true case and controversy for which judicial

relief is appropriate.

Off. of the Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119, 1137 (Pa. Cmwlth. 2017).

In William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d

269 (Pa. 1975) (plurality),12 our Supreme Court held that “one who seeks to

challenge governmental action must show a direct and substantial interest. . . . In

addition, he must show a sufficiently close causal connection between the challenged

action and the asserted injury to qualify the interest as immediate rather than

remote.” Id. at 286 (internal quotation marks and footnotes omitted). In this regard,

“the concern is to distinguish those who have suffered some individual injury from

expressions of opinion.” Id. In order to sustain preliminary objections, it must appear with

certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to

sustain them. Id.

12

William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975), is a

plurality opinion concerning whether a pecuniary interest is required to assert standing in the

context of a taxpayer challenge. See id. at 295-96 (Eagen, J., concurring, with Jones, C.J. &

Pomeroy, J.; Nix, J., concurring in result). Nevertheless, its presentation of the principles of

standing has been widely cited in cases not concerning or limited to taxpayer standing. See, e.g.,

Johnson v. Am. Standard, 8 A.3d 318 (Pa. 2010) (holding that estate executors had standing to

challenge constitutionality of statute limiting successor liability for asbestos-related injuries and

deaths).

7

those asserting only the common right of the entire public that the law be obeyed.”

Id. at 287. Along these lines, a potential petitioner may be “affected” by a

governmental action, but if he fails to establish the requisite substantial, direct, and

immediate interest to support standing, the action may be dismissed. McConville v.

City of Phila., 80 A.3d 836, 843 (Pa. Cmwlth. 2013).

Standing is a threshold matter and “unless one has a legally sufficient

interest in a matter, that is, is aggrieved, the courts cannot be assured that there is a

legitimate controversy.” Pittsburgh Palisades Park, LLC v. Commonwealth, 888

A.2d 655, 659-60 (Pa. 2005) (internal cites & quotation marks omitted). “[T]he

person must be negatively impacted in some real and direct fashion[.]” Id. at 660

(internal quotation marks and citation omitted). The interest must also be “peculiar,”

“personal,” “individualized,” and “greater than that of any other citizen.” Id.

However, when petitioners allege that government action violates a statute, we have

not required them to assert that only they are affected, so long as they allege that the

challenged action creates a “discernible adverse effect to some interest other than

the abstract interest of all citizens in having others comply with the law.” Nat’l

Election Def. Coal. v. Boockvar, 266 A.3d 76, 101 (Pa. Cmwlth. 2021). Put simply,

a petitioner must allege sufficient facts to establish that an “injury in fact” has been

sustained. Johnson v. Am. Standard, 8 A.3d 318, 330 (Pa. 2010) (citing William

Penn Parking Garage, 346 A.2d at 283-84 & n.23).

In the context of school and education litigation, parents seeking to sue

on behalf of their children generally have a direct and substantial interest, which is

part of the standing inquiry set forth in William Penn Parking Garage. In O’Grady

v. Centennial School District, 401 A.2d 1388, 1390 (Pa. Cmwlth. 1979), this Court

found parental standing even though the child was not currently in the parents’

8

custody. In Parents United for Better Schools, Inc. v. School District of Philadelphia

Board of Education, 646 A.2d 689 (Pa. Cmwlth. 1994), we concluded that individual

parents and a parents’ group established a substantial interest to challenge a school

board policy regarding distribution of condoms in schools even though the interest

they articulated was “shared by all parents of Philadelphia schoolchildren,” because

“[t]o deny standing to persons who are in fact injured simply because many others

are also injured, would mean that the most injurious and widespread Government

actions could be questioned by nobody.” Id. at 692 (quoting U.S. v. Students

Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 688 (1973)).13

However, petitioners seeking parental standing must still satisfy the

applicable requirements, and preliminary objections may be sustained for lack of

standing where the petition “does not allege expressly or by necessary implication

that [the petitioner] is directly, immediately, or substantially affected by [the

challenged provision].” Pa. Chiropractic Fed’n v. Foster, 583 A.2d 844, 851 (Pa.

Cmwlth. 1990). If a petition contains only “general averments” or allegations that

“lack the necessary factual depth to support a conclusion that the [petitioner] is an

aggrieved party,” standing will not be found. Pa. State Lodge, Fraternal Ord. of

Police v. Dep’t of Conservation & Nat. Res., 909 A.2d 413, 417 (Pa. Cmwlth. 2006),

13

In Reichley v. North Penn School District, 537 A.2d 391 (Pa. Cmwlth. 1988), parents

sought an injunction to compel striking teachers to return to work. We concluded that “parents

have an interest in seeing that the children receive an education including the ‘perks’ attendant to

it such as sports, band, and various other extra-curricular activities. This then gives these

Petitioners a greater interest than that of the public at large.” Id. at 393.

The dissent incorrectly states that Reichley is dispositive of the standing question in this

case. Open PA Schools v. Dep’t of Educ. (Pa. Cmwlth., No. 504 M.D. 2020, filed May 12, 2022),

slip op. at 2-4 (McCullough, J., dissenting). However, the issue here, unlike in Reichley, is whether

Petitioners alleged facts sufficient to establish an injury in fact, which is an additional requirement

of standing under the test set forth in William Penn Parking Garage. See 346 A.2d at 283-84 &

n.23.

9

aff’d per curiam, 924 A.2d 1203 (Pa. 2007). Moreover, the harm asserted must be

specific, actual, and discernible (an “injury in fact”); an assertion of abstract or

unspecified harm without factual averments connecting the alleged harm to the

actions being challenged does not give rise to standing to bring a lawsuit. Id.

The Department argues that Petitioners have failed to allege any

specific instances of damage or loss resulting from the Policy. Department’s Br. at

8-9. Petitioners respond that the Amended Petition alleges psychological losses and

educational delays suffered by Pennsylvania children when school districts resorted

to continued remote instruction during the 2020-21 school year as permitted by the

Policy. Petitioners’ Br. at 4-6. Petitioners add that their own interests are sufficient

to confer standing because they are the parents of children deprived of the benefits

of in-person instruction. Id.

The following portions of the Amended Petition, none of which were

in the Original Petition, are at issue:

6. The individual petitioners are parents of children who

are directly and immediately impacted by the

[Department’s] policy that permits school districts to use

virtual learning as a substitute for in person (face-to-face)

instruction and, therefore, their children are deprived of

the benefit of 180 days of in person instruction that is

required by Section 1501 of the [School Code].

....

33. Although the overwhelming majority of parents in the

Commonwealth are in favor of some form [of] in person

learning, yet many school districts in the Commonwealth,

following the [Policy,] have denied parent’s [sic] the right

to an in person education.

....

10

37. [The Policy] not only violates the School Code, but it

denies students critical non-education programs.[14]

38. The [Department] is not only trampling on the rights

of parents, but it is also usurping the exclusive authority of

the General Assembly as to how an efficient system of

education can be maintained.

....

43. Petitioners interests surpass those of other citizens

because they are [parents] of children impacted by the

[Policy] and have been robbed of their entitlement of at

least 180 days of in-person instruction for their children

that is required by the School Code.

44. The [Department is] causing every child in the

Commonwealth permanent and irreparable harm.

45. The [Department is] causing every child in the

Commonwealth permanent psychological damage from

the lack of daily social interaction.

46. The [Department is] causing every child in the

Commonwealth permanent educational damage because it

will take years for student[s] to catch up after losing so

much classroom time because of the [Department’s

Policy].

Amended Petition ¶¶ 6, 33, 37-38 & 43-46.15

14

Petitioners point out that many children also depend on schools for in-person health,

social, and meal services. Amended Petition ¶ 35.

15

The numbering of paragraphs in the Amended Petition mistakenly repeats Paragraphs

31-39 on pages 14-15. For purposes of this decision, we have correctly renumbered them as 41-

49.

11

First, it is unclear from the Amended Petition whether Petitioners are

suing in their own right, on behalf of their children, or both. This imprecision

contributes to Petitioners’ failure to establish standing in this case.16 The individual

Petitioners appear in the Amended Petition’s recitation of parties as parents but not

on behalf of their minor children, which suggests they are suing in their own right.

Amended Petition ¶¶ 4-6. Likewise, Petitioners aver that the school districts’ actions

in following the Policy “have denied parent’s [sic] the right to an in-person

education” and that the Department’s action in issuing the Policy “trampl[es] on the

rights of parents.” Id. ¶¶ 33 & 38. Petitioners also maintain that their interests

surpass those of other citizens in Pennsylvania “because they are [the parents] of

children impacted by the official policy and [who] have been robbed of their

entitlement of at least 180 days of in-person instruction for their children that is

required by the School Code.” Id. ¶ 43.

However, Petitioners also assert that their children were “deprived of

the benefit of 180 days of in[-]person instruction” by uncapped remote instruction

during the 2020-21 school year and that the Policy is “causing every child in the

Commonwealth permanent and irreparable harm,” which suggests Petitioners are

suing on their children’s behalf, although the Amended Petition does not list

Petitioners’ children as parties to this litigation, even through their parents. Id. ¶¶ 5-

6 & 44. The Amended Petition further alleges psychological and social impacts and

educational delays sustained by all of Pennsylvania’s school children who attended

16

When questioned at oral argument, counsel for Petitioners stated that both Petitioners as

parents and their children sustained harm from the Policy’s operation.

12

school remotely because the Policy permitted school districts to continue largely

remote learning during the 2020-21 school year. Amended Petition ¶¶ 45-46.17

Petitioners therefore assert in the Amended Petition that in-person

education is not just a right of their children, but of themselves as parents. Amended

Petition ¶¶ 33 & 43. However, the right of either parents or children to in-person

education has not been declared in the Commonwealth, and while Petitioners seek

here to have that right recognized, we decline to do so solely for the purposes of

establishing Petitioners’ standing where, as we discuss below, they have not asserted

sufficient and specific facts to support their assertions of harm.

In O’Grady, parents challenged the school district’s failure to place

their child in a residential special education setting. 401 A.2d at 1390. Unlike this

case, O’Grady involved a purely individual and far more developed set of facts, and

the question was not the basis of standing, but whether the parents could assert

standing without having custody of the child. Moreover, it cannot be inferred from

a reading of O’Grady that the parents there were claiming they personally had a right

to their child’s placement in a residential education setting. Thus, O’Grady is

inapposite to the situation here, where the right asserted by Petitioners, in-person

schooling for their children, is not settled and they are claiming that right

individually as parents rather than solely on behalf of their children.

In addition to a lack of specificity in the Amended Petition as to whose

interests are being claimed, Petitioners have again failed to allege any “peculiar,”

“personal,” and “individualized” harm to themselves or to their children’s education

17

As noted, Petitioners also allege that the lack of in-person schooling negatively impacts

children who depend on schools to provide meals and other social, physical, medical, and mental

health services of a non-educational nature. Amended Petition ¶¶ 35-37. Petitioners do not,

however, assert in the Amended Petition that this is the case for their children.

13

and wellbeing resulting from the Policy. See Pittsburgh Palisades Park, 888 A.2d

at 659-60. Their assertions still lack the “necessary factual depth” required to allege

an “injury in fact” by connecting the Policy’s permission for school districts to offer

extended remote schooling during the 2020-21 school year with specific instances

of harm actually sustained by Petitioners or their children.

In Funk v. Wolf, 144 A.3d 228 (Pa. Cmwlth. 2016), the petitioners

alleged that government inaction on climate change violated the Environmental

Rights Amendment in article I, section 27 of the Pennsylvania Constitution, Pa.

Const. art. I, § 27. Id. at 232; . The government raised a standing challenge, arguing

that the petitioners, who were minors suing through their parents and guardians,

asserted only generalized harms. Id. at 243. We disagreed, finding sufficient detail

in the petitioners’ averments that they personally and specifically had already

sustained negative impacts from unchecked climate change. Id. at 246-48.

Specifically, the petition gave numerous concrete examples of how climate change

had already affected each petitioner as an individual, including diminished

enjoyment of outdoor experiences and activities; contending with tornadoes,

hurricanes, floods, temperature swings, and other increasingly dramatic weather

events; worsening and aggravation of asthma and other health conditions; and

decreased access to coastal recreation areas affected by rising sea levels and ocean

acidification. See id. at 246-48

Here, unlike in Funk, Petitioners’ allegations lack any specific factual

connection to themselves or their children and are merely generic assertions of

educational and psychological harms potentially sustained by all public

schoolchildren subject to uncapped remote learning during the 2020-21 school year.

Also, while Petitioners’ decision to limit their allegations to the Department’s

14

actions in setting the Policy avoids the logistical issue of re-joining their school

districts to this litigation, the Policy is permissive rather than mandatory, which

weakens Petitioners’ ability to claim they have met the “direct” and “immediate”

requirements of standing vis-à-vis the Department’s actions.18

In Lisa H. v. State Board of Education, 447 A.2d 669 (Pa. Cmwlth.

1982), two schoolchildren sued through their parents, asserting that regulations

governing the selection of children for gifted programs violated their rights by

excluding them from better and more well-funded public programs without just

cause. Id. at 672. We found that while the petitioners “assert[ed] that they were not

deemed to qualify for admission to the program under the current criteria, they [did]

not allege in their amended complaint that they are gifted and talented school-aged

children who are eligible for the program.” Id. at 674. We therefore concluded that

they “failed to establish themselves as parties aggrieved by the criteria set forth in

the [School] Code and have failed to demonstrate the direct, immediate and

substantial interest necessary to confer standing upon them in this action.” Id.

Here, as in Lisa H., Petitioners have again failed to connect the asserted

harm caused by the Policy in any specific way with themselves or their children.

The Amended Petition contains no allegations rooted in their actual experiences,

instead emphasizing that by operation of the Policy, the Department has caused

unspecified educational and psychological harm to “every child in the

Commonwealth[.]” Amended Petition ¶¶ 44-46.

18

The Policy provided guidance for school districts to continue providing uncapped remote

learning during the 2020-21 school year but emphasized that the decision to do so remained a local

matter for school districts. Had Petitioners’ school districts provided in-person schooling,

Petitioners would not have had a basis for their cause of action.

15

These allegations do not set forth a viable “injury in fact” sustained by

Petitioners. Instead, the Amended Petition simply implies that because Petitioners

allege that the Policy violates the School Code and all Pennsylvania schoolchildren

were impacted when their districts opted for ongoing remote learning, they need not

do more to establish their actual standing to bring this action. As in the previous

iteration of this case, Petitioners’ apparent position again conflates the level of harm

needed to establish standing with the harm that must be shown to obtain a

preliminary injunction, a lower standard in which mere violation of a law may be

sufficient. Open PA Schools, slip op. at 14-15, 2021 WL 129666, at *7 (citations

omitted). We explained the distinction as follows:

In Pennsylvania Public Utility Commission v. Israel, 52

A.2d 317 (Pa. 1947), our Supreme Court [held] that for

purposes of injunctive relief, a violation of a statute was,

in itself, irreparable harm or injury. Israel continues to be

cited for the proposition that a continuing violation of a

statute is all the harm that must be shown by the moving

party seeking a preliminary injunction. See, e.g., Wolk v.

Lower Merion Sch. Dist., 228 A.3d 595, 611 (Pa. Cmwlth.

2020) (citing Israel for premise that in injunction context,

“[s]tatutory violations constitute irreparable harm per

se”).

The availability of “per se harm” in the injunction setting

appears to be asserted here by analogy in Petitioners’

position that if this Court finds that the Department and the

responding districts’ actions in beginning the 2020-21

school year with largely or entirely remote teaching

violate the School Code, then declaratory judgment in

Petitioners’ favor is warranted. However, the standard of

harm required to achieve standing requires a would-be

plaintiff to show more: a direct, substantial, immediate

interest and sufficient averment of facts showing the party

is aggrieved.

16

Id. (citations omitted).

As the authorities cited above show, parents generally have broad

authority to sue on behalf of themselves or their children in the educational context,

but this does not negate the basic requirements of standing, including the need to

clearly allege, with factual support in the petition, a substantial, direct, and

immediate interest greater than that of all Pennsylvanians. See Bd. of Pub. Educ. of

the Sch. Dist. of Pittsburgh v. Pa. Hum. Rels. Comm’n, 682 A.2d 1345, 1347 (Pa.

Cmwlth. 1996) (“It is in the interest of all citizens that the School Board comply

with the law and not engage in discriminatory hiring. [The petitioners] have failed

to show a discernible adverse effect to any other interest.”). Petitioners have now

had two opportunities to present clear and sufficient facts in support of their standing

in this case and have again failed to do so. See Open PA Schools, slip op. at 14-15,

2021 WL 129666, at *6-7 (“[A]ssuming arguendo that Petitioners have been more

directly impacted than ordinary citizens because they are parents of [schoolchildren],

. . . Petitioners’ assertions . . . either state no harm at all or are the kind of “general

averments” found insufficient to achieve standing[.]”). We therefore sustain the

Department’s preliminary objection challenging Petitioners’ standing. In light of

our dismissal of the Petition on grounds that it fails to plead sufficient harm or injury

to establish Petitioners’ standing, we do not reach the Department’s additional

preliminary objections.

Because Petitioners have already had two opportunities to establish

standing, we conclude that they are unable to allege sufficient facts by

individualizing the asserted harms they currently allege in general form. Therefore,

we dismiss the Amended Petition with prejudice.

17

III. Conclusion

For the foregoing reasons, we sustain the Department’s preliminary

objection asserting lack of standing. Petitioners’ Amended Petition is dismissed

with prejudice.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Open PA Schools, Jamie Walker, :

Tara Adams, James Holt, Felix P. :

Mummolo, Stacey McShane, Jaret :

Matthew Gale, Patrice Silver, Joe :

Dettore, Sr., Chris Brill, and Beth :

Rosica, :

Petitioners :

:

v. :

:

Department of Education of the :

Commonwealth of Pennsylvania :

and Noe Ortega, Secretary of :

Education, in his official capacity, : No. 504 M.D. 2020

Respondents :

ORDER

AND NOW, this 12th day of May, 2022, the preliminary objection filed

by the Department of Education of the Commonwealth of Pennsylvania and Noe

Ortega, Secretary of Education, in his official capacity, challenging the standing of

Petitioners, Open PA Schools, Jamie Walker, Tara Adams, James Holt, Felix P.

Mummolo, Stacey McShane, Jaret Matthew Gale, Patrice Silver, Joe Dettore, Sr.,

Chris Brill, and Beth Rosica, is SUSTAINED. Petitioners’ Amended Petition for

Review is DISMISSED with prejudice.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Open PA Schools, Jamie Walker, :

Tara Adams, James Holt, Felix P. :

Mummolo, Stacey McShane, Jaret :

Matthew Gale, Patrice Silver, Joe :

Dettore, Sr., Chris Brill, and Beth :

Rosica, :

Petitioners :

: No. 504 M.D. 2020

v. :

: Argued: February 9, 2022

:

Department of Education of the :

Commonwealth of Pennsylvania :

and Noe Ortega, Secretary of :

Education, in his official capacity, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: May 12, 2022

Respectfully, I must disagree with the well-written Majority that the

parents do not have standing. In the amended Petition for Review (PFR), Petitioners1

1

Petitioners in this matter are Open PA Schools, Jamie Walker, Tara Adams, James Holt,

Felix P. Mummolo, Stacey McShane, Jaret Matthew Gale, Patrice Silver, Joe Dettore, Sr., Chris

(Footnote continued on next page…)

assert that “[t]he individual petitioners are parents of children who are directly and

immediately impacted by the [Pennsylvania Department of Education’s] policy that

permits school districts to use virtual learning as a substitute for in[-]person (face-

to-face) instruction[,] and, therefore, their children are deprived of the benefit of 180

days of in-person instruction that is required by Section 1501 of the Public School

Code of 1949 [(School Code)],[2]” 24 P.S. §15-1501. (PFR ¶8.) The PFR alleges

that the Pennsylvania Department of Education’s Policy “not only violates the

School Code, but also denies students ‘critical’ non-education services and programs

‘including meal programs, and social, physical, behavioral, and mental health

services.’” Id. ¶¶35, 37. The PFR further avers that the Department’s Policy is

causing “every child in the Commonwealth permanent psychological damage from

the lack of daily social interaction.” Id. ¶45.

These facts are materially indistinguishable from those in Reichley v.

North Penn School District, 537 A.2d 391 (Pa. Cmwlth. 1988). In Reichley, the

petitioners asserted their children’s right to an education was violated, because

school was unavailable while the teachers were on strike. Id. Our Court said:

Certainly, these parents have an interest in seeing that

the children receive an education including the

“perks” attendant to it such as sports, band, and various

other extra-curricular activities. This then gives these

[p]etitioners a greater interest than that of the public

at large. And, because of this interest in continued

education for their children, their position is sufficiently at

odds with the Association to create a controversy so as to

Brill, and Beth Rosica. Some of these Petitioners are parents whose children attend public schools

in the Commonwealth.

2

Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101–27-2702.

PAM - 2

entitle [the] [p]etitioners to standing under the Declaratory

Judgments Act.[3]

Id. at 393 (emphasis added).

The Majority admits that “[i]n the context of school and education

litigation, parents seeking to sue on behalf of their children generally have a direct

and substantial interest” and, in the text of its opinion, cites case law holding that

parents have standing to challenge a school district’s policy that has an effect on the

child’s educational needs or curriculum. Open PA Schools v. Department of

Education (Pa. Cmwlth., No. 504 M.D. 2020, filed May 12, 2022), slip op. at 8. Yet,

as it pertains to the case most directly on point in this matter, Reichley, the Majority

relegates its cursory review of that case to a footnote and attempts to distinguish it

superficially. See id., slip op. at 9 n.13. Indeed, although this Court in Reichley

expressly concluded that the parents possessed standing under the test set forth in

William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975),

the Majority surmises that this was not in fact the case, proclaiming that an additional

element must also be satisfied, namely an allegation of an “injury in fact.” Open PA

Schools, slip op. at 9 n.13.4

3

42 Pa.C.S. §§7531-7541.

4

Notably, the “injury in fact” discussion in William Penn Parking Garage that the Majority

refers to deals primarily with the effect of regulatory oversight on companies/institutions that

generally fall within the ambit of that area of oversight to illustrate the causal connection that is

necessary between the two for purposes of demonstrating “aggrievement.” See id. at 284 n.23,

wherein the Supreme Court summarized the following cases: “Barlow v. Collins, 397 U.S. 159

(1970) (tenant farmers receiving benefits under federal statute have standing to challenge

regulations increasing their freedom to assign the benefits in advance on the ground that their

increased freedom to assign renders them more vulnerable to exploitation by their landlords

because protection of tenant farmers from such exploitation is within the zone of interests protected

by the statute); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150

(1970) (plaintiffs in the business of providing data processing services have standing to challenge

(Footnote continued on next page…)

PAM - 3

I do not believe this is a correct interpretation of Reichley and a fair

representation of the law on standing. Reichley, the only case which most closely

correlates to this matter, was straightforward in its holding that parents have a right

to sue because they have an interest in seeing the children receive an education,

including various extracurricular interests, and there was no discussion of any

“injury in fact.”

Nonetheless, to the extent the “aggrievement” component of standing

subsumes an injury-in-fact inquiry, such will be established where the “interest [the

petitioner] seeks to protect is arguably within the zone of interests sought to be

protected . . . by the statute or constitutional guarantee in question.” William Penn

Parking Garage, Inc., 346 A.2d at 284 n.23. Here, obviously, the interest

Petitioners/parents seek to protect is their children’s statutory right, under Section

1501 of the School Code, to receive 180 days of in-person education and the

associated benefits thereof. This was all that was required in Reichley, and it is all

that is required here. In desiring something more, the Majority, despite its disclaimer

to the contrary, actually engages in a merits-based review of the underlying claim

and, in essence, concludes that Section 1501 of the School Code does not confer

substantive rights and/or the children of the Petitioners/parents were not “harmed”

administrative ruling permitting national banks to furnish such services to their customers because

the ‘zone of interests’ protected by the regulatory scheme arguably includes the interest of non-

bank competitors not being subjected to competition from banks in the provision of non-banking

services); Arnold Tours v. Camp, 400 U.S. 45 (1970) (travel agents have standing to challenge

ruling permitting banks to furnish travel services for same reason); Investment Co. Institute v.

Camp, 401 U.S. 617 (1971) (investment companies have standing to challenge ruling permitting

banks to operate investment funds for same reason).” Upon my review, I believe these cases are

unhelpful in deciding the issue at bar because the causal relationship that exists between

Petitioners/parents, the rights of their children to obtain an education, per the terms of Section

1501 of the School Code, and an alleged violation of that right is much more direct and

unquestionable.

PAM - 4

or “injured” enough. See Open PA Schools, slip op. at 13 (“[T]he right of either

parents or children to in-person education has not been declared in the

Commonwealth, and while Petitioners seek here to have that right recognized, we

decline to do so solely for the purposes of establishing Petitioners’ standing . . . .”);

id. at 13-14 (“Petitioners have again failed to allege any ‘peculiar,’ ‘personal,’ and

‘individualized’ harm to themselves or to their children’s education . . . .”).

Ultimately, I believe the Majority, in addressing the degree of the

effects on the students from missing in-person days of school, misapplies the

analysis required for determining whether the parents have standing. “In

determining whether a party has standing, a court is concerned only with the question

of who is entitled to make a legal challenge and not the merits of that

challenge.” In re T.J., 739 A.2d 478, 481 (Pa. 1999) (emphasis added). Here,

Petitioners/parents assert the Department’s 2020-21 Policy of providing mostly

remote learning violates Section 1501 of the School Code. They allege

psychological and social impact damages and educational delays, including the loss

of “perks” referenced in Reichley. By concluding Petitioners/parents here have not

asserted a violation of an established statutory right, I believe the Majority

misapplies Reichley, which recognized that parents have an interest in their children

receiving an education under the School Code, which also includes the attendant

perks, i.e., sports, meals, extracurricular activities.

Because I believe Reichley is directly on point and governs the issue of

standing, I would find Petitioners/parents have standing and must respectfully

dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge

PAM - 5